Reda Report draft – explained

Core finding

The provisions of 2001’s copyright directive have not been able to hold step with the increase of cross-border cultural exchange facilitated by the Internet. The current copyright regime hinders the exchange of knowledge and culture across borders. To meet current challenges, the legislation needs to be updated to current practices and harmonised further.

1./2. THE COPYRIGHT CONSULTATION

The copyright consultation received an exceptionally large number of responses by individuals, despite lacking an easy online interface to do so

One of the highest participation rates ever demonstrated: Copyright reform is important to voters. They demand over-whelmingly an EU-level solution to the cross-border problems and legal uncertainty they encounter in their daily lives related to copyright.

Most artists seeking to earn a living from artistic expressions must negotiate copyright licences with corporations to commercialize their works. Those contractual exchanges are often marked by an imbalance of power between the parties. Corporations may leverage a stronger bargaining position to retain most of the resulting profit, reducing benefits for artists. Copyright policy can help protect authors from such vulnerability.[…]

States should protect artists from exploitation in the context of copyright licensing and royalty collection […] through legal protections that may not be waived by contract.

Concern has been expressed about coercive contracts that authors and artists identify as a primary obstacle to fair remuneration. Under such contracts, which are frequent, creators sign away all their rights to their creation in order to gain a commission for creating a work. Consequently, they lose control over their creation, which can be used in contradiction to their own vision. […]

On all these issues, artists are reluctant to enter into lengthy and costly judicial proceedings against corporations, which in turn can be a deterrent to artistic creativity.

4. Single European Copyright Title

The cleanest solution to the fragmentation of EU copyright is the introduction of a single European title, like the European patent and the European trademark (but replacing national titles). This long-term goal would benefit both rightholders and users: While the former would have a more unified basis of protection, the latter would gain more legal certainty in their cross-border uses.

The vast majority of end users/consumers consider that the EU should pursue [this] idea [which] would enhance legal certainty and transparency for right owners and consumers [and] reduce transaction and licensing costs related to the clearance of rights […] The vast majority of institutional users are also generally in favour [as well as] a significant number of authors/performers—EU copyright consultation report

6. Safeguard the public domain

Despite being decades out of copyright, a Japanese company long owned exclusive photography rights of the Sistine Chapel ceiling

The public domain is comprised of works whose copyright has expired or to which copyright never applied, and yet digital versions of public domain art are often adorned by copyright symbols today – under the claim that digitisation grants new copyright protection to public works.

The report recommends: Clarify that digitisation does not grant new copyright protection to works that were previously commonly owned.

Also, it is often unneccessarily hard for artists to voluntarily release a work into the public domain or under a liberal license due to restrictive publishing contracts or collecting society inflexibility.

The report recommends: Recognise the autonomy of artists to release works the way they want, including into the public domain.

The vast majority of works are commercially exploitable for a shorter time than their copyright protection lasts. As a result, many works are unavailable, causing a “20th century hole” in the market and in archives alike. For most works, long copyright protection does not ensure increased author remuneration – but it does decrease their availability.

The vast majority of end users consider that the current terms of copyright protection are inappropriate. … Institutional users generally believe that the current terms […] should be shortened. … Some broadcasters […] think that the term is too long … The vast majority of intermediaries and service providers consider that the term of protection is too long.—EU copyright consultation report

8. Balance interests

The InfoSoc directive aimed to achieve a balance between all the parties concerned, including authors and performers, other rights holders, users of copyright protected works and the general public. Exceptions and limitations are an important element of providing this balance. Their examination in light oftechnological and social progress is the main focus of the next paragraphs of the report.

9. Equal rights on- and offline

As the analogue usage environment is gradually replaced by a digital one it is necessary to ensure that the purpose behind exceptions and limitations is continued to be fulfilled as usage practices change. Otherwise, the rights granted to the public are gradually eroded over time.

Example: If the education exception allows a teacher to provide every student with a physical copy of a particular text as reading material for class, they should also be able to provide students access to the same text in a digital format through a school intranet.

10. Impact on cross-border exchange

An error message familiar to all Europeans, but understandable to none.

As cross-border usage grows, the impact of differences in copyright exceptions and limitations is increasingly negative for the completion of the Digital Single Market.

Example:

Documentary filmmakers require freedom to use specific images, video clips or music necessary to tell a particular story. Depending on a country’s exceptions and limitations regime, those artistic practices may be clearly defined as permissible or may occupy a legal grey zone that makes it difficult for creators to commercialize and distribute their works.—UN Report Copyright policy and the right to science and culture

This especially affects projects to foster the communication between countries, such as the German-French television broadcaster arte.

11. Make exceptions mandatory

The exceptions and limitations outlined in the InfoSoc directive have been tested in individual member states and have proven not to be detrimental to authors’ material interests. Yet their implementation is currently optional. Only when the same exceptions apply in each country can they benefit the public in cross-border contexts.

End users/consumers consider that the optional nature of the list of exceptions creates legal uncertainty and an uneven playing field for market participants. … Institutional users generally support copyright harmonisation which implies making exceptions mandatory … Many respondents from [the Intermediaries/distributors/service providers] group argue for more harmonisation and legal certainty in the area of exceptions. … Representatives of academia, civil society or think-tanks generally consider that the optional nature of the exceptions is problematic and that exceptions should be further harmonised.—EU copyright consultation report

The report recommends: Make copyright exceptions mandatory across member states.

12. Welcome transformative creation

The phone in your pocket is a computer more capable of multimedia production, equipped with a better camera, than most professional artists had access to when the InfoSoc directive was written. Along with the Internet as a zero-cost global publishing medium, this phenomenon has brought about a broad creative revolution, enabling a wealth of emerging practices in which new works are created by transforming existing ones.

Thousands of people have recorded themselves dancing to Pharrell Williams’ hit Happy – including at the Parliament

Examples: Such practices, often exercised without any commercial goals, include: Audiovisual remixes and mashups (like songs created from dozens of found video clips), lip dubs (creative reenactments of songs), supercuts (assemblies of similar movie scenes), mods (modifications and conversions of computer games, for example to change the characters or add new environments), remakes of/hommages to out-of-commerce classics, Machinima (movies recorded using game environments as the “studio”), Let’s Plays (live video transmissions of computer gaming sessions), and many more.

Despite not interfering with the commercial exploitation of works, these works are surrounded by legal uncertainy:

13. Add a future-proof Open Norm

States have a positive obligation to provide for a robust and flexible system of copyright exceptions and limitations to honour their human rights obligations. The “3-step test” […] should be interpreted to encourage the establishment of such a system of exceptions and limitations.—UN Report Copyright policy and the right to science and culture

The reform of EU copyright rules takes a long time. Fourteen years have passed between the introduction of the InfoSoc directive and this evaluation. The directive refers to now-obsolete technology like CD-ROMs. It’s safe to assume that technological development will continue to be faster than the legal system can adapt.

An open norm would give courts the possibility to allowfuture uses that pass the international standard 3-step-test:

A special use of a work…

…that does not conflict with its normal exploitation…

…and does not unreasonably prejudice the legitimate interests of the author

This open norm differs significantly from the US “fair use”,because it applies additionally to a specific list of exceptions and limitations and does not replace them. It is a fall-back mechanism to give the exceptions and limitations the necessary flexibility over time and make them future-proof.

The vast majority of institutional users favour increasing the flexibility of exceptions in EU copyright law, and most often see the solution in the introduction of [an] open norm, in addition to the list of specific limitations. … Many consumers suggest adding an open norm to the current list of exceptions to permit uses that could not be foreseen at the time of the adoption of the legislation. … some [Member States] consider that some of the existing exceptions are not technology neutral hence an extension to ‘‘‘similar uses’’’ or another type of open norm could be considered. … A small fraction of authors and collective management organisations argue that making the list of exceptions open-ended could help EU law keep pace with technological change. … Other [academics] argue that adding an open norm to the existing list of exceptions would be the best means to ensure that the relevant legislation is future-proof.—EU copyright consultation report

14. Allow audio-visual quotation

“Reaction GIFs” are pop culture references (in very short animated loops) used to underscore points in online discussions

While almost all countries have a copyright exception for quotation, the interpretation of what qualifies as a quotation is different between member states. This causes problems as text, audio and visual material is increasingly used interchangeably because of media convergence.

Example: A recent UN campaign video was taken down because it included a brief copyrighted clip (an audio-visual quote) of its celebrity spokesperson.

The report recommends: Clarify that exceptions like the one for quotations apply to all forms of cultural expression in a technology-neutral manner.

15. Allow Linking

The ability to link from one resource to another is the basic building block that enables the Internet. By definition, content that you can link to is publicly available. Somebody who links to a website has no control over the content at the other end. A link therefore can’t require rightholder authorization or imply liability. Putting such a “price tag” on linking would unduly interfere with people using the Internet in a most basic way.

The vast majority of end users/consumers […] the vast majority of institutional users […] most service providers […] consider that hyperlinks to a work or other protected subject matter should not be subject to authorisation by the rightholder.—EU copyright consultation report

The report recommends: Clarify that referencing to works by means of a hyperlink is not subject to exclusive rights.

16. Copyright-free public space

Sharing a picture of the European Parliament building without the architect’s permission may be illegal

Freedom of Panorama means that anyone can take pictures of public buildings and distribute them without permission of the architect – but it is not or only partially implemented in many member states.

Example: While it is legal to take a picture of the Eiffel Tower during the day (because its copyright has expired) that is not the case at night, because there is an independent copyright protection of the Eiffel Tower’s light show.

Due to the territoriality of copyright, an image legally taken under Freedom of Panorama in one country may be illegal to distribute in another. For people sharing their holiday pictures after traveling to another member state, this is incomprehensible.

The report recommends: Improve legal certainty of everyday activities by adding an exception for full panorama freedom across Europe.

17. Allow caricature & parody

The exception for caricature, parody & pastiche is essential for freedom of expression and should be made mandatory.

This movie poster parody I used to interest the public in the EU Commissioner hearings is of questionable legality in some EU member states

Allowing pastiche (imitations of an existing work or its style) enables a number of remixing activities that have emerged along with new technologies. It strikes a better balance between authors’ rights to commercially exploit their works and their artistic freedom to build upon the works of others.

In a recent ruling, the European Court of Justice providedimportant clarifications on the definition of parody. However, it also problematically called for weighing the interest of the parodist against that of the rightholder (not the author, who had passed on) not to be associated with a discriminatory message. It thereby argued that a moral right can be passed on from the author to another person – even a legal person, when it should be an aspect of the author’s inalienable moral rights, not of the copyright that can be traded away. Otherwise the danger that such a right is used to suppress a parody out of economic or other motives is too high.

The report recommends: The parody, caricature & pastiche exception should apply regardless of the derivative work’s purpose. It should not be constrained by a right holder’s copyright, but only by the moral rights of the author.

19. Empower research and education

The details of what is allowed under national research and education exceptions vary significantly between EU states:

Quite often the exception does not cover any use of digital formats, introducing unnecessary burdens for teachers, professors and students.

Example: Prohibited from making texts available to students in a digital format (for example through a school intranet), teachers often spend a significant amount of time making physical copies of works, which the exceptions allow for.

These restrictions also make it difficult for European universities to offer free online courses (MOOCS), an education opportunity that has gained great popularity for universities outside of Europe.

There is usually no provision for non-formal education, like self-organised study sessions by youth organizations, etc.

The report recommends: The research & education exception needs a common definition to allow collaboration across borders and should encompass non-formal education.

20. Allow e-lending

Libraries pay remuneration fees to collecting societies to lend out books they have acquired. The Rental and Landing Directive which facilitates this does not cover e-books, making libraries dependent on e-lending services offered by publishers, which (if available) are often limited and may require subscription to their entire catalogue instead of allowing the purchase of single works.

21. No national levies on legal use

Example: Spain’s new copyright law requires the payment of a statutory licence fee for aggregating articles and other copyrighted works that are freely available online (including those released under free licenses). This new inalienable remuneration right has made the operation of news aggregation services like Google News commercially unviable and has devastating effects on the rights to freedom of expression and freedom of information, as it affects all kinds of activities that rely on the voluntary free sharing of information through open licences.

The report recommends: Whether or not a remuneration requirement is attached to an exception or limitation needs to be decided at the European level.

This does not preclude the possibility of remuneration requirements in exceptions and limitations at the EU level, as is the case with the private copying exception.

Member states have implemented very different private copying levies on different consumer media and devices such as blank DVDs or printers. These differences make it difficult to trade with these goods within the internal market, sometimes manufacturers have to pay levies twice for the same product. A reform should at least come to a more harmonised definition of the remuneration requirement and transparency over what happens with the money collected through levies.

The report recommends: A common legal understanding on the harm caused to rightholders by private copying, and increased transparency on the distribution of levies.

23./24. Technological protection

Many digital works are sold with technological protections that effectively prohibit people from making use of copyright exceptions provided by law.

Example: People are reguarly technologically hindered from making backup copies of their DVD purchases as private copying exceptions allow, despite having paid a levy on the blank DVD to do so.

Some technological protections install monitoring software on the user’s computer without their knowledge. This can be a security risk, as this software can be used to spy on a user’s activities on the computer. To ensure that technological protection measures don’t pose a risk, users (and experts) should be able to look at the source code of the technology and ensure that the technological protection does exactly what it purports to be doing and does not introduce security holes into a user’s computer.

The publication of the source code would also support the interoperability of different devices and data formats, which is important to avoid the development of monopolies where users have to continue buying products of the same company so as not to lose access to their library of works they have already bought.

The report recommends: Technological protection must not obstruct legal use. Any protection measures should be open source.

To the extent possible under law, the creator has waived all copyright and related or neighboring rights to this work.

As an author and novelist, I am finding the current situation almost impossible. Amazon has demanded ever increasing discounts from my publishers, and as a result I have been forced to accept royalties based on net receipts. This means if Amazon demands an 80% discount, my income falls by 80%. However, I am tied to contracts that require rights over my works until 70 years after my death. I cannot fight these contracts. I earn far to little to instruct a lawyer. But my income and livelihood are tied utterly by contracts imposed on me by my publishers, and their own contracts with Amazon and retail outlets that they will not let me see. My income has dropped to one third of what I was earning as a professional author ten years ago. Although I am a successful author with 35 titles in print, I am now at risk of losing my house because my income has fallen so drastically.
If any thought could be given to releasing authors from the contracts that they were often forced into in the past, that might help by allowing writers to resell rights and make a little more income. On the other hand, many books are resold second hand. Painters are entitled to claim a royalty on all second hand sales. Authors should also be allowed a fee for resale of their works, perhaps in keeping with the library loan lending rights.
At present authors in England have seen their incomes collapse in the last fifteen years. If there is nothing done to protect the creators of books and novels, they will cease working in this industry. The industry is worth many millions each year, bringing in American Dollars and other currency to the Euro zone. It is folly to force the creators of this wealth to leave the industry for lack of money.

Why only haven’t I read this before (or at least along with) the whole report? :-)

Julia, you singlehandedly became my ever favourite politician. When all the proposals in your report become reality (and I say when, not if, for I believe it’s inevitable, but we can’t waste one minute more than necessary), you’ll change this continent as we know it. To me, the copyright in Europe is a gross dent in European free market, it currently allows for outright blackmail aimed towards the authors and end-users alike and most importantly criminalizes daily life of most of EU citizens.

At least I don’t feel very strongly that obscure laws have much of an effect on cultural exchange, for Europeans luckily “celebrate diversity” although EU is only saying it and does very little to make it actually happen – someone on #fixcopyright on Monday said, that market always finds it’s way around obscure and idiotic laws, no matter what – millions of people just have to balance on the edge of the law for a long time before the law is no longer applicable and have to change in order not to fill the prisons with half the population of Europe.

To wrap this up – since free speech and free access to information are the fundamental basis for any democratic society, copyright reform must be something very close to heart of any liberal person, no matter what. Keep up the very good work – in the few months of your term you’ve already managed to do more meaningful work than most politicians do in all their lives for, unlike most politicians, you don’t fear to name the problem!

I agree with Anselme Pau and Michael Jecks: the big earners in music (my line of work) are only a small percentage of the total group of composers. For most of us, living of our music is becoming harder and harder. The past few years artists have seen large financial cutbacks, not only in the field of royalties and copyright. Your proposals include more mandatory exceptions to copyright (in some cases without compensation), the use of open standards and unlimited linking. In short, this stands for less protection of the rights of creators and more imbalance of power. You say you want to fight for creators’ rights: could you give some concrete proposals?

What will this free linking cover? Nobody has anything against the linking of a complete web page, however if parts of a website can be linked it will devastate the income of many musicians, photographers and videographers. For example , if a newspaper can link to a photograph on a photographers website, the newspaper will not need to pay the photographer. The photographer cannot then earn a living.